February 2, 2021 - Edwin Osorio - 2nd Vice President
Over the last 200 years the Supreme Court has had many landmark cases that have shaped the U.S into arguably the freest country in the world. From Marbury V. Madison, Roe V Wade, and Brown V. The Board of Education we have constantly tested our democracy with great results. Of Course we have Supreme Court cases like Plessey V. Ferguson, Korematsu V. the United States, and the Dred Scott Decision that keep us humble in our failings as a country. A great example of where we got it right and a great example of what separates us from other countries is Miranda V. Arizona. This case ensured the right of all Americans to be informed that they had a right to an attorney before being questioned by the police. In 1966 the Supreme Court told us how important it was that Americans had a right to representation and once this right was invoked could not be interrogated by the police. In 2019 through the 2019 National “Disagreement” The Social Security Administration (SSA) decided that bargaining unit employees did not have this right.
In 1774 the British enforced the Coercive Acts that were known as the Intolerable Acts by the American Colonies. In 2019 SSA imposed under duress with a complete abuse of their leverage the 2019 National “Disagreement” as a collective bargaining agreement (CBA). While this CBA indiscriminately stripped employees of their rights and privileges, it gave them not a scintilla in exchange. If this was a business contract, it would be unenforceable because of all of the concessions given to one side with not an iota of consideration to the other. In fact, there was a contraction in union/employee rights. The coercion that was unduly placed on the Union to accept the CBA would make the agreement unconscionable. However, unlike a business contract that has a full array of courts available to exercise judicial review, the Union had no such recourse and succumbed to the pernicious efforts of SSA. And nothing exemplifies this more than SSA’s change to Weingarten Rights.
New iterations of the CBA should be ameliorative of working conditions advancing employee rights and protections while cultivating the sanctity of civil service. Instead, SSA has willfully and duplicitously enforced a CBA that degrades working conditions and demoralizes employees that have become disaffected from the nobility of civil service. In furtherance of the dismantling of employee rights, the agency unilaterally determined that it no longer was required to let employees know that they have a right to union representation in the event of an investigative interview. This has made bargaining unit employees more vulnerable to the predilections of management operatives that often run rogue and in contravention of the CBA.
Weingarten Rights are the employee’s rights to be notified of their right to union representation in the event they reasonably believe they may be facing disciplinary action. This would result from an investigative meeting where the agency is also required to provide the topic of the investigation to the employee. And like Miranda Rights, once an employee invokes their right to representation all actions must cease until the employee has been able to obtain a representative and has had the opportunity to speak privately. Now the agency will push back and say they simply changed the method of informing the employee. In other words, instead of informing the employee in real time antecedent to any investigation, the agency has chosen to issue an electronic advisory in the form of what they call the Annual Personnel Reminders(APR). The APR is a document of rules the agency issues via email once a year. It is usually around 50 pages and significant in the sense that not knowing it can get an employee in a lot of trouble, yet the agency makes no attempt to promote its adherence; ensconced well into the text under the subheading of miscellaneous, only an employee with vast amounts of disposable time and a proclivity for unrelenting curiosity would uncover these rights. This would be tantamount to Miranda Rights not being read to Americans in real time, but expecting them to have already read them published in the National Inquirer.
This begs the question: why would the agency make it exponentially more difficult for employees to know their Weingarten Rights? Adding insult to injury, the agency goes out of its way to make the investigation inconspicuous so not to arouse the attention of the employee. There is no altruistic reasoning that is evident. Therefore, it can only be out of malevolence. The reality is a more vulnerable employee is an employee that is easier to terminate. And for the past four years SSA has been on a crusade to terminate employees. It isn’t enough that they have made Weingarten Rights as ubiquitous as a T-Rex in Central Park, they have unconscionably made underhanded attempts to disguise the seriousness of the investigative interview in order to lull an employee into a false sense of complacency.
The agency intentionally presents a pro forma meeting that is usually construed as a work related discussion, thus raising no alarms to the severity of the meeting. Often it is not until the actual meeting which is normally scheduled within hours of the employee’s first notice. The first inkling the meeting is more than the agency portrayed comes when there are two management operatives involved and one is taking copious notes. At that point the employee is under an inordinate amount of duress and is often psychologically paralyzed and unable to think clearly. The real danger is that the statement given will be used not only in the immediate investigation, but to determine an employee’s fitness for federal service in the future.
It is under these conditions that employees are literally at the mercy of their interrogators and often out of fear answer questions that are incongruent to the facts or have employees answer as if they understand the facts when they really don’t. This causes incrimination out of duress that leaves employees vulnerable to management’s self-serving interpretation of events that is rarely in the employee’s interests. Compounding the injustice, the agency will create a document that serves as a summary of the investigative interview and the only record of the interview without ever showing it to the employee to test its veracity. Whenever the agency requires a member of the public to make a statement, it always allows the person to read the statement before signing (attesting to it) it. For clearly nefarious reasons the employee is not asked to review the responses or attest to its veracity. Once the agency has what it needs, it wants no interference with the next step in its agenda, which is to turn it into an instrument of disciplinary action. The employee usually doesn’t see the investigative summary for months, after the employee has been disciplined.
This maltreatment demoralizes employees into acquiescing to unreasonable and sometimes untenable working conditions that ultimately adversely impacts the employee’s ability to effectively service the public. Sometimes it encourages obsequies conduct from employees that winds up pitting employees against each other in the name of self-preservation. This author believes a complete change must occur beginning with the mandate that the agency resumes informing employees of their rights when management wants to conduct an investigative interview.
Once the employee is notified of management’s intent to conduct an investigative interview, they should not only be informed about the potential for disciplinary action and their right to union representation, they should receive it in writing detailing the scope of the investigation including the alleged infraction under investigation, period of time it occurred, names of witnesses and other involved parties, and a copy of the policy or procedure that was allegedly violated. Once the employee invokes their right to union representation, all communication with the employee must cease and held exclusively with the union representation. This would be a proper protection of the employee’s rights. Additionally, the Union representative must be recognized as such during the investigation and not treated as an observer. He/she is there to represent the interests of the employee. And once the meeting is over the Union must be provided a copy of any summary for inspection of its contents and signed off on by the employee and the Union and provided a copy. Only then can it be placed in an agency repository for future use.
Employees should be incentivized to flourish in their capacity as federal employees and the agency should be furnishing a work environment that is conducive to the highest levels of morale and prosperity. The nobility of civil service must be restored and this cannot happen under a CBA that has been weaponized for the purpose of alienating employees from their internal happiness and pride that emanates from civil service. If this recommendation is taken it will be only one of many changes that are needed in order to restore the dignity employees have always relied upon to rise to the enormous challenges in serving the American public. The agency should terminate its position as the obstacle to employees being the best that they can be.